Opinion
Case No. 4:22-cv-00183-SMR-HCA
2022-09-17
Eny Adamy MEJIA RODRIGUEZ, Petitioner, v. Dennys Antonio Reyes MOLINA, Respondent.
Cara S. Donels, Thomas Merrill Patton, Fredrikson & Byron, P.A., Des Moines, IA, for Petitioner. Benjamin David Bergmann, Brown & Bergmann, L.L.P., Des Moines, IA, for Respondent.
Cara S. Donels, Thomas Merrill Patton, Fredrikson & Byron, P.A., Des Moines, IA, for Petitioner. Benjamin David Bergmann, Brown & Bergmann, L.L.P., Des Moines, IA, for Respondent. FINAL ORDER STEPHANIE M. ROSE, CHIEF JUDGE
This case began when Respondent Dennys Antonio Reyes Molina improperly removed a child from the custody of Petitioner Eny Adamy Mejia Rodriguez. After removal, he brought the child from Honduras to the United States. Petitioner sought the child's return, which led her to file a Petition in this Court under the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention") and the International Child Abduction Remedies Act ("ICARA"). For the reasons discussed below, Petitioner has established a prima facie case under the Convention. Respondent has not established the applicability of an exception that obviates the statute's mandatory return requirement. Accordingly, the Petition for Return is GRANTED.
The child refers to the individual whose identifying information is contained in sealed documents. [ECF Nos. 5-8 (Sealed)]. The child shall be referred to as "Minor Child" throughout the remainder of the order.
I. FACTUAL BACKGROUND
A. Early History
Minor Child was born in Honduras to Eny Adamy Mejia Rodriguez and Dennys Antonio Reyes Molina. [ECF No. 6 (Sealed Birth Certificate)]. She lived with both parents for the first months of her life until they separated. [ECF No. 37 at 3 (Petitioner's Trial Brief)]. Afterwards, she lived with Petitioner full-time while Respondent and Respondent's family remained involved in her life. Minor Child lived with Petitioner from their separation until Respondent brought her to the United States.
B. History of Abuse
Over two days, the Court heard testimony from several people explaining how Petitioner struck Minor Child as punishment for misbehavior. The period of abuse started when the Minor Child was two and continued until she was removed from Honduras at the age of five. A brief review of the evidence clarifies the nature of Petitioner's behavior.
Respondent testified that Petitioner used physical violence to punish Minor Child for her behavior. She used a broom to strike the child for being energetic at the age of two. She repeatedly utilized either her fist or the palm of her hand to hit the Minor Child on the back as punishment, which started at the age of four. On another occasion, she repeatedly hit the Minor Child with a belt, leaving significant bruises, after she urinated in her bed. This caused the child to be so scared that she urinated in the bed again. Respondent attempted to resolve his concerns with Petitioner's disciplinary methods through conversation, but Petitioner ignored him, yelled at him, and struck him once. After the incidents, Respondent spoke with an attorney and attempted to file a complaint in a local court, but did not succeed because the relevant court was not near their home in Santa Cruz de Yojoa, Honduras.
Respondent's sister, Luz Marina Reyes Molina, testified to Petitioner's history of striking the minor child as well. She stated Petitioner once hit the child in her home when Petitioner and the child visited. Specifically, Petitioner punched the child in the back for being disrespectful. She recalled Minor Child would visit her house and tell her something like "mom hit me" during the visits. She explained the conduct was not surprising because Petitioner was impulsive, which would cause her to get upset at small things, and then lead her to punish the Minor Child for behavior that is common among children.
Respondent's other sister, Lillian Maritza Reyes Molina, also witnessed Petitioner strike the child during a visit. She observed an instance of Petitioner hitting the Minor Child as punishment for her behavior. Petitioner kicked her other child, the child's older brother, during the same visit. Beyond this incident, she stated there were two other instances where Petitioner was intoxicated and struck the child, although the timeframe of these incidents was unclear.
The older brother of Minor Child was not fathered by Respondent.
C. Removal of Child from Mother's Custody
Based on these concerns, Respondent decided to photograph the injuries caused by Petitioner. Respondent went to Petitioner's house in early October 2021 and observed the child covered in dirt. He noticed bruises and suspicious injuries on her body. He took the child, left Petitioner's home, and went to his home. He cleaned her up and took photographs of the injuries before returning the child. [ECF Nos. 39-39-7 (Sealed Photographs of Minor Child)].
A few days later, Respondent visited Minor Child at Petitioner's home. [ECF Nos. 36 at 1 (Sealed); 37 at 3]. He asked if he could take the child to get ice cream shortly after arriving. [ECF No. 37 at 3]. Petitioner told him no and stated Respondent could visit with the child in the home. Id. Respondent took Minor Child from the home and left Honduras. He walked from Honduras to Mexico. In Mexico, he paid someone to smuggle him and the child into the United States. Respondent came to Des Moines, Iowa to stay with his girl-friend.
D. Mother's Initial Requests for Return
While Respondent traveled from Honduras to the United States, Petitioner used numerous avenues to secure return of the child. On October 15, 2021, she filed a Solicitud de Restitucion Internacional with the Autoridad Central de la República de Honduras. [ECF No. 8 (Sealed)]. On December 21, 2021, the United States Department of State notified Respondent of the complaint. [ECF No. 5 at 2 (Sealed)]. The letter stated he had until January 4, 2022 to respond or the agency would use Article 7(t) of the Convention to "facilitate the initiation of judicial proceedings by Ms. Mejia Rodriguez." Id. at 3. Respondent did not act on the letter.
II. PROCEDURAL BACKGROUND
Petitioner filed her Complaint on June 2, 2022. [ECF No. 1]. In it, Petitioner alleges Respondent unlawfully took the child from Honduras to the United States. Id. The Court construed Petitioner's request as a Temporary Restraining Order ("TRO") under Federal Rule of Civil Procedure 65(b). Id. The order aimed to stop Respondent from moving to another location with the child again. Id. The Court granted the order. [ECF No. 9].
After granting the order, the Court set an expedited hearing to determine whether to convert the TRO into a preliminary injunction. At the hearing, Petitioner and Respondent - both represented by counsel - agreed to extend the order until a final adjudication could occur. [ECF No. 12]. In so doing, parties agreed the circumstances that supported the issuance of the TRO remained present. Id. The preliminary injunction was granted on June 24, 2022. [ECF No. 14].
On June 27, 2022, Petitioner filed a Motion for Order to Show Cause. [ECF No. 15]. In the Motion, Petitioner asserted Respondent had not followed the Court's prior orders. Id. at 2. Upon receipt, the Court scheduled a combined status conference and show cause hearing for July 8, 2022. [ECF No. 16]. The Court spoke with Defendant about the importance of complying with the orders, but declined to hold him in contempt. [ECF Nos. 21-22 (Minute Entries)]. The Court scheduled proceedings for early August so it could adjudicate the merits as expeditiously as possible while providing parties time to develop and present their cases. Id.
The Court held evidentiary proceedings in early August. [ECF Nos. 42 (Minute Entry for August 4 Proceeding); 47 (Minute Entry for August 8 Proceeding)]. Respondent presented argument and evidence to support his contention that returning the child to Honduras would present a grave risk of physical harm. [ECF Nos. 36; 39-40 (Respondent's Exhibits); 42]. Petitioner offered rebuttal testimony, asserting the child would not be at risk of grave harm if the Court were to order her return. [ECF No. 46 (Petitioner's Initial Exhibits); 47; 48 (Petitioner's Responsive Exhibits)]. At the end, the Court noted it would take the applicability of the grave risk exception under advisement. [ECF No. 47].
The parties do not dispute that Petitioner has established a prima facie case of improper removal under the Convention. They agree she has demonstrated the countries are members of the Convention, that Honduras is the child's habitual residence, and that she was exercising a right of custody under Honduran law at the time of removal. The Court confers with the parties on these matters. Thus, the sole issue is whether Respondent has established the applicability of a grave risk exception by clear and convincing evidence. He has not. Accordingly, the Petition for Return is GRANTED.
III. GOVERNING LAW
A. General Framework
The United States of America is a signatory to the Convention. See Hague Convention on the Civil Aspects of International Child Abduction, art. 1(a), (b). The Convention's goals are twofold: 1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and 2) "to ensure that rights of custody and of access under the law of one Contracting state are effectively respected in the other Contracting States." Id. The United States Senate considered and ratified the Convention in October 1986. Shortly after, Congress enacted ICARA to carry out the treaty domestically. See 22 U.S.C. §§ 9001-9010.
The treaty and enacting statutes created a four-part merits test. First, a court must address whether the countries in the dispute, i.e., from where the child was taken and to where they were taken, are signatories. Abbott v. Abbott, 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Second, the court must determine the child's habitual residence at the time of the abduction, which determines the applicable law. Monasky v. Taglieri, — U.S. —, 140 S. Ct. 719, 726, 206 L.Ed.2d 9 (2020) (citation omitted). Third, the court asks whether the person who took the child violated a "right of custody" as defined by the law of the country of the child's habitual residence. Chafin v. Chafin, 568 U.S. 165, 168, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (citation omitted). If the answer is yes, a court must order the return of the child to the country of habitual residence unless a narrow exception is proven by the respondent. Hague Convention on the Civil Aspects of International Abduction, arts. 12-13; see also 22 U.S.C. § 9003.
There are four exceptions to the requirement that a child must promptly be returned to the child's country of habitual residence. Hague Convention on the Civil Aspects of International Abduction, arts. 12-13. The relevant exception for this case is one where a judicial authority "is not bound to order the return of the child if . . . there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Id. at art. 13(b). Although the court may decline to order the return of the child if it finds an exception exists, it should use its discretion "to return a child, despite the existence of a defense, if return would further the aims of the Convention." Leonard v. Lentz, 297 F. Supp. 3d 874, 890 (N.D. Iowa 2017) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)).
B. Grave Risk in General
"General evidence of harm is insufficient to satisfy Article 13b." Acosta v. Acosta, 725 F.3d 868, 875 (8th Cir. 2013) (citing Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376 (8th Cir. 1995)). This is because grave risk "means a more than serious risk.' " Neng Nhia Yi Ly v. Heu, 294 F. Supp. 2d 1062, 1066 (D. Minn. 2003) (quoting Danaipour v. McLarey, 286 F.3d 1, 14, (1st Cir. 2002)). Grave risk constitutes an affirmative defense in two specific situations. Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir. 2003). The first is where return would send the child to a "zone of war, famine, or disease." Id. (quoting Friedrich, 78 F.3d at 1069). The second is when there will likely be "serious abuse or neglect" upon return. Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 2011) (citing Silverman, 338 F.3d at 900). Respondent maintains only the latter is applicable to the case.
The key inquiry is "the gravity of risk" facing the child. Babcock v. Babcock, 503 F. Supp. 3d 862, 882 (S.D. Iowa 2020) (quoting Acosta, 725 F.3d at 876). This analysis focuses on "the probability of harm, but also the magnitude of the harm if the probability materializes." Id. A court must cite "specific evidence of potential harm" to a child as part of the inquiry. Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995); Silverman, 338 F.3d at 900.
C. Grave Risk of Serious Abuse or Neglect
There are several factors to consider when examining the grave risk of serious abuse or neglect in the context of physical abuse. Acosta, 725 F.3d at 876. These factors are whether the parent abused the child and the frequency they did it; how the parent responds to challenging parenting situations involving the child; and whether there is spousal abuse.
The first consideration is if a parent abused their children. Acosta, 725 F.3d at 876. In its analysis, a court should consider whether the abuse was a one-time incident or a lengthy pattern. See Forcelli v. Smith, Civil No. 20-699 (JRT/HB), 2020 WL 5015838, at *9 (D. Minn. Aug. 25, 2020) (a parent slapping their child after being told about the child's crush is not a grave risk for serious abuse); Rodriguez v. Rodriguez, 33 F. Supp. 2d 456, 460 (D. Md. 1999) (history of abuse causing the child to miss a significant amount of school meets this element). Although this factor should be assigned the greatest weight, a court is not precluded from finding a grave risk with no history of physical abuse. Acosta, 725 F.3d at 876.
The second factor is a parent's ability to manage their anger. In Acosta, the United States Court of Appeals for the Eighth Circuit held a district court properly declined to return a child to Peru because it was "highly probable that [the father] will react with violence, threats, or other verbal abuse towards the children" even though he had no history of directly abusing them. 725 F.3d at 876. It pointed to how the parent assaulted a taxi driver in front of the children, abused his spouse in their presence, and harassed an individual with threatening phone calls for weeks. Id. He also "telephonically expressed threats to kill the children and then himself." Id. Based on the "violent temper and his disregard for protecting the children from its consequences," the Court concluded " 'it would be irresponsible to think the risk to the children less than grave." Id. (quoting Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir. 2005)).
The third factor is spousal abuse. Acosta v. Acosta, Civil No. 12-342, 2012 WL 2178982, at *7 (D. Minn. Feb. 14, 2012), aff'd Acosta, 725 F.3d at 876. A history of spousal abuse is relevant where it evinces a propensity towards violence and is accompanied by other risk factors with respect to the child. Walsh v. Walsh, 221 F.3d 204, 208-211 (1st Cir. 2000) (a parent's spousal abuse and abuse towards a child from another marriage were sufficient to demonstrate a grave risk to the child in the petition). When addressing this third factor, the court should consider if the alleged conduct is either disagreement among spouses or abuse. Vasquez v. Colores, Civil No. 10-3669, 2010 WL 3717298, at *8 (D. Minn. Sept. 14, 2010).
D. Ameliorative Measures
Courts may consider ameliorative measures, i.e., steps that reduce the likelihood of harm to the children if they are returned, in its grave harm analysis. Golan v. Saada, — U.S. —, 142 S. Ct. 1880, 1893, 213 L.Ed.2d 203 (2022). It must consider three objectives when doing so. Id. First, "ameliorative measures should abide by the Convention's requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute." Id. at 1894. Second, "ameliorative measures must accord with the Convention's requirement that courts 'act expeditiously' in proceedings for the return of children." Id. Third, "consideration of ameliorative measures must prioritize the child's physical and psychological safety." Id. at 1893.
IV. ANALYSIS
A. Signatories of the Convention
The first step is to determine whether the countries involved in the dispute are signatories to the Convention. Abbott, 560 U.S. at 9, 130 S.Ct. 1983. The official list of signatories to the Convention can be found in a status table that is frequently updated. Monasky, 140 S. Ct. at 723 (citing Hague Convention on the Civil Aspects of International Child Abduction, Status Table). The relevant countries are Honduras and the United States. [ECF Nos. 1; 1-4; 1-5]. Honduras and the United States are both signatories of the Convention. This element is met.
B. Habitual Residence
"It is the Convention's 'core premise' that 'the interests of children . . . in matters relating to their custody' are best served when custody decisions are made in the child's country of 'habitual residence.' " Monasky, 140 S. Ct. at 723 (quotation omitted). The Convention "does not define the term 'habitual residence,' " but it is best understood to be where the child lives. Id. at 726. Determination of habitual residence is a "fact-driven inquiry" requiring a court consider more than "domicile and nationality." Id. at 727. The relevant factors include the place the child considers home, the length of time a child has resided in the location, the degree of the child's integration, and the intention of the caregivers on where the family will reside. Id. at 726-27. No factor is dispositive. Id. at 728.
Petitioner submitted the child's birth certificate from the National Registry of Honduras. [ECF No. 1-5]. It demonstrates she was born in Honduras and both of her parents resided in the country at the time of her birth. [ECF No. 1-5]. The child continuously resided with Petitioner in Santa Cruz de Yojoa from birth until October 2021. [ECF No. 42]. Significant portions of the family reside around Santa Cruz de Yojoa. Finally, letters provided by both sides show that the child lives in the community and attends school there. [ECF Nos. 7 at 2-11 (Petitioner Letters of Support); 40-8-40-11]. Simply put, the parties' agreement that the country of habitual residence is Honduras is well-supported by the record. This element is met.
C. Breach of Right of Custody
"The removal or the retention of a child is to be considered wrongful where . . . it is in breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention on the Civil Aspects of International Child Abduction, art. 3(a). "The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State." Id. " '[R]ights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention on the Civil Aspects of International Child Abduction, art. 5(a).
The parties agree Petitioner had a right of custody over the child and exercised it prior to the removal, which is supported by the record. First, she submitted the birth certificate of the child, which shows she is the mother. [ECF No. 1-5]. Second, she filed a "La Solicitud de Restitucion Internacional" or "International Restitution Request" that she submitted to the government to secure the return of the child, i.e., which required her to demonstrate she had a right of custody over the child. [ECF No. 1-7]. These documents, when taken together, create a presumption Petitioner has a right of custody over the child under Honduran law.
Petitioner exercised her right of custody immediately prior to the removal. This occurred when she expressly told Respondent he did not have permission to take the child from her house to get ice cream. This is because parental rights include "the right to legally represent the minor, to exercise guardianship and care of the minor, to feed, assist, educate, and administer his or her property." [ECF No. 1-9 at 4 (citing Honduras Family Code, art. 186)]. Respondent's removal of Minor Child from Petitioner's custody was a violation of her rights under Honduran law to decide how the child would be fed and where she could go. This element is met.
D. Exception to Return Requirement
The record contains evidence showing that Petitioner repeatedly used physical force to discipline the Minor Child. However, the Court cannot say the exhibits clearly and convincingly show the child would face a grave risk of serious abuse if she were returned. To be clear, the decision does not condone Petitioner's conduct. The Court believes Petitioner physically abused the child on at least one occasion before the child was removed to the United States. The Court is concerned and distressed by the possibility that the child will be further injured by her mother upon her return to Honduras. Petitioner's excessive disciplinary style for the young child must be expeditiously addressed and remedied. However, the Court is equally unimpressed with the father's actions. Removing the child from her home and subjecting her to the known dangers of illegal smuggling operations to bring her to the United States without documentation or without a stable living arrangement is extremely risky and irresponsible behavior.
Neither parent here has acted in a manner that prioritizes the child's safety and wellbeing. Nonetheless, as set forth below, the narrow legal issue before the Court mandates that Honduran courts resolve these parenting deficiencies.
i. Probability of Harm
The first element is the probability that harm occurs to a child upon return to their country of habitual residence. Acosta, 725 F.3d at 876. The evidence raises a real possibility Petitioner would use physical force to correct the child's misbehavior once back in Honduras. A possibility does not meet the relevant evidentiary standard. Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (evidence is clear and convincing when it leads a factfinder to think its contentions are "highly probable"). Further, the evidence surrounding alleged death threats and spousal abuse insufficient as well. Respondent has not shown this aspect of the exception.
a. Physical Abuse
The evidence shows a consistent, unnerving pattern. Minor Child behaves in the manner typical of a young child such as urinating in her bed, arguing with a sibling, or being energetic. Petitioner becomes annoyed or frustrated by the behavior, which leads her to physically punish the Minor Child in response, at times excessively. This cycle has happened a number of times over the period of three years and occurred right up until Respondent took the minor child from Honduras. From this pattern, there is a real possibility Petitioner would act this way in the future. See Van de Sande, 431 F.3d at 569 (a past pattern of abuse can be used to estimate the risk of future harm).
Some contrary evidence supports the opposite conclusion. First, Petitioner testified she planned to change how she corrects the Minor Child at the evidentiary hearing. She explained she now uses different methods of correction - timeouts, taking away items, or talking through problems - to change the behavior of her other child. She also stated she no longer intends to use physical punishment to correct behavior. This explanation, although not fully convincing absent additional supportive evidence, offers reason to believe the behavior will not recur. This is particularly true now that Petitioner understands the looming custody battle she faces in Honduras and the likely impact abusive discipline would have on such litigation.
Second, and more compellingly, affidavits of individuals with close relationships with the child suggest the punishment may not happen with the frequency Respondent asserts if the child were returned to Honduras. [ECF. Nos. 46-35-46-42]. The most relevant affidavit comes from Nora Josely Mejia Saenz. [ECF No. 46-35]. Ms. Saenz teaches second grade at the John F. Kennedy School in Santa Cruz de Yojoa and taught Petitioner's children. Id. According to her statement, she never had issues with Minor Child or her sibling, whether it related to abuse, lack of grooming, or anything else. Id. at 2. Although she did not testify, this statement from an individual independent of both families suggests that future abuse is possible, but not highly probable.
Numerous affidavits from community members also support this finding. [ECF Nos. 46-35-46-43]. Maria Lastenia Sandoval, Petitioner's neighbor who cared for Minor Child when Petitioner worked, explained she never saw signs of abuse or neglect. [ECF No. 46-42]. Maria Chavez Peña, a parent whose children went to school with Petitioner's children and were in the same grade as them, stated she never saw signs regarding abuse or neglect with respect to Petitioner's children. [ECF No. 46-41]. Fanny Magdalena Martinez Rodriguez, another parent in the community, stated Petitioner personally cared for her children for two years and she did not have concerns regarding the physical punishment used in this case. [ECF No. 46-10].
b. Death Threat
Respondent asserts the Court should consider how "[Petitioner] and her current romantic partner have made serious and credible threats of physical violence" against him. [ECF No. 36 at 6]. He provided additional context at the evidentiary hearing, stating that Petitioner's partner - Javier Odoñez - threatened to kill him over the phone. Respondent played the message at the hearing and the translated version is below in full:
Look . . . I'm going to tell you something. [Minor Child's] dad is shit and you are shit too. So don't get in trouble okay. So, you swallow those words that you made and there is no problem because there are problems with [Minor Child's] father. I want to grab that guy; I want to grab him. Calm down, look so don't get involved okay. Because I am Eny's husband okay. I don't like that shit of you threatening my wife, so you know if you continue, it's up to you. Same for the dad, the asshole, that that guy, the asshole, that guy who's who's there as a teacher, there of music, I don't know what the fuck it is. Everybody knows him. Everybody knows him and anyone can take him down. So please shut your mouth. Nobody, nobody, nobody disrespects her, including you. So, you shut the fuck up because you only use your mouth to tell someone to piss off, you hear? So don't fuck around, agreed?[ECF No. 40-12 at 1].
This angry voicemail is an inappropriate outburst plain and simple. However, it does not contain any details stating how or where Petitioner would be harmed. Nor does it demonstrate steps were taken to harm him, either by Odoñez or Petitioner. Although the speaker expresses frustration with Respondent and attempts to intimidate him, it is demonstrably not a death threat or a threat of violence against him. Petitioner also testified she is no longer in a relationship with Odoñez. Ultimately, this inappropriate outburst is not relevant to the question of the grave risk of harm facing Minor Child if she were returned to Honduras.
c. Spousal Abuse
Respondent alleges Petitioner abused him in their relationship. [ECF No. 36 at 2]. At the hearing, he explained he would attempt to stop Petitioner from inflicting physical punishment on Minor Child. She turned her fury on him when he did so. His testimony is not supplemented by additional evidence like photographs or texts, which stands in contrast to the other claims. [ECF Nos. 39-39-7]. The Court did not find this testimony compelling. Respondent has not met his burden to show by clear and convincing evidence that spousal abuse occurred nor demonstrated how it reflects on the way Petitioner would treat the child were she returned to Honduras.
d. Conclusion
The record raises a real, non-speculative possibility Petitioner may physically punish the child to correct behavior upon her return to Honduras. If the standard were preponderance of the evidence, it would be met. However, the relevant element of the grave risk exception must be shown by clear and convincing evidence, which the exhibits submitted by Respondent do not establish. Accordingly, he has not shown the first element of this defense.
ii. Magnitude of Harm
The second consideration is the extent of harm that would occur if the probability came to pass. Nunez-Escudero, 58 F.3d at 377. The magnitude of harm is not significant enough to constitute a grave risk of serious abuse under the Convention.
The magnitude of the harm Minor Child could face in Honduras is shown by photographs of previous injuries she received from Petitioner. [ECF Nos. 39-39-7 (Sealed)]. In five pictures - taken on the day in question - significant bruises appear on Minor Child's back, buttocks, or legs consistent with being struck forcefully and repeatedly by a belt. [ECF Nos. 39-39-2, 39-6-39-7]. The three other pictures capture injuries accurately described as scrapes. [ECF Nos. 39-3-39-5]. As noted earlier, the Court is troubled by evidence Petitioner has painfully injured her daughter as a disciplinary tool on at least one occasion. However, the injuries do not indicate Minor Child would face a magnitude of physical harm that would allow the Court to lawfully decline to return the child to Honduras. Acosta, 725 F.3d at 876; Walsh, 221 F.3d at 219; Van De Sande, 431 F.3d at 567.
Appellate courts have declined to return children to home countries only after observing abusive behavior that far surpassed this case. In Acosta, the Eighth Circuit upheld a court order declining to return a child because the parent threatened himself and the children, battered a random taxi driver in a fit of rage, and repeatedly abused his spouse in front of the children. 725 F.3d at 876. In Walsh, the United States Court of Appeals for the First Circuit declined to return a child because the record illuminated the abusive parent "has been and can be extremely violent and cannot control his temper." 221 F.3d at 219-220 (noting the parent "threat[ened] to kill his neighbor in Malden, for which he was criminally charged."). In Van De Sande, the United States Court of Appeals for the Seventh Circuit held a parent met the defense because the other parent threatened to kill the children, beat the spouse in front of them, and there was a real possibility he would "lose control and inflict actual physical injury" on them. 431 F.3d at 570.
The Court finds the record does not show by clear and convincing evidence that Minor Child would face a similarly grave risk of serious harm upon return to Honduras. The Court struggles to understand why any parent would beat their child with a belt, but it also recognizes the need to be sensitive to different cultures and their methods of parenting. Likewise, it cannot ignore how Respondent's choices presented serious risks to the health and safety of the child. The Court holds the evidence is insufficient to grant Respondent the relief he seeks. Accordingly, the second element of the exception is not met.
iii. Ameliorative Measures
The parties did not submit any proposed ameliorative measures prior to the evidentiary hearings. [ECF Nos. 36; 37]. They did not present information on any potential measures at or after the hearings. [ECF Nos. 42; 44]. Although the Court would prefer to have ameliorative measures established prior to returning Minor Child to Honduras, requesting additional materials would delay the return. Keeping this in mind, the Court declines to impose measures or request parties brief them. Golan, 142 S. Ct. at 1895 ("consideration of ameliorative measures should not cause undue delay in resolution.").
E. Summary
Petitioner has established the three elements necessary to make a prima facie case for the return of Minor Child. Respondent did not demonstrate that the "grave risk" exception under the Convention and ICARA applied to this case, which means Petitioner is entitled to return of the child. See Hague Convention on the Civil Aspects of International Child Abduction, art. 12.
V. CONCLUSION
Based on the previous findings of fact and law, the Court orders the following:
1) Respondent Dennys Antonio Reyes Molina, and any person acting in concert with Respondent, is prohibited from removing, or taking actions to remove, the child, from the jurisdiction. Any individual seeking to remove the child from the jurisdiction must file an appropriate motion in this Court and receive permission before doing so.
2) No agency - either federal, state, or local - may remove, or take actions to remove, the child from the jurisdiction. Any agency seeking to remove the child from the jurisdiction must file an appropriate motion in this Court and receive permission.
3) Respondent must allow and facilitate, at a minimum, daily phone calls of thirty (30) minutes between Petitioner and child, which may not be monitored or recorded.
4) Respondent must allow daily text messaging between Petitioner and child between the hours of 6pm Central Time and 8pm Central Time.
5) Counsel shall jointly draft a plan describing the process by which Minor Child will be returned to Honduras. The plan must be filed with the Court no later than the close of business on September 30, 2022. The plan must provide concrete details on how the child will be returned to Honduras in the most expeditious manner possible.
6) The order may be enforced by any United States Marshal, federal police officer, state police officer, local police officer, or equivalent official.
As a final note, the Court does not intend to stay its order requiring return of the child should an appeal be filed, which would unjustifiably slow the return. Golan, 142 S. Ct. at 1893. This conclusion is supported by the fact that the Court retains jurisdiction even after the child is returned. Chafin, 568 U.S. at 176, 133 S.Ct. 1017.
IT IS SO ORDERED.